| Matter of Carmen C. (Margarita N.) |
| 2012 NY Slip Op 03637 [95 AD3d 1006] |
| May 8, 2012 |
| Appellate Division, Second Department |
| In the Matter of Carmen C. Orange County Department of SocialServices, Respondent; Margarita N., Appellant. (Proceeding No. 1.) In the Matter of Ida R.Orange County Department of Social Services, Respondent; Margarita N., Appellant.(Proceeding No. 2.) In the Matter of Juan R. Orange County Department of Social Services,Respondent; Margarita N., Appellant. (Proceeding No. 3.) In the Matter of Miguel R. OrangeCounty Department of Social Services, Respondent; Margarita N., Appellant. (Proceeding No.4.) |
—[*1] David L. Darwin, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), forrespondent. Gary E. Eisenberg, New City, N.Y., attorney for the children.
In related proceedings pursuant to Social Services Law § 384-b and Family Court Actarticle 6 to terminate parental rights on the ground of permanent neglect, the mother appeals froman order of the Family Court, Orange County (Bivona, J.), dated March 31, 2011, which, after ahearing, revoked a suspended judgment contained in an order of disposition of the same courtdated January 14, 2010, upon a determination that she violated the terms and conditions thereof,and terminated her parental rights.[*2]
Ordered that the order dated March 31, 2011, is affirmed,without costs or disbursements.
These proceedings were commenced pursuant to Social Services Law § 384-b andFamily Court Act article 6 to terminate the mother's parental rights to the four subject children onthe ground of permanent neglect. After a fact-finding and dispositional hearing, the Family Courtfound that the mother had permanently neglected the subject children, determined that the bestinterests of the children would not be served by their return to the mother, and terminated themother's parental rights, but suspended the judgment as long as the mother strictly complied withthe terms and conditions of the order of disposition. The mother was required, inter alia, tomaintain a minimum attendance rate of 95% of all scheduled sessions of her drug and alcoholtreatment program, until successfully discharged, and to participate in the Family SupportProgram.
On August 25, 2010, the Orange County Department of Social Services filed a violationpetition alleging that the mother failed to comply with the terms of the suspended judgment. Atthe ensuing hearing, evidence was adduced that the mother failed to maintain a 95% attendancerate at her drug and alcohol treatment program and had been discharged as a result. She had alsobeen discharged from the Family Support Program for noncompliance.
In the order appealed from, the Family Court, upon determining that the mother violated theterms of the suspended judgment, revoked the suspended judgment and terminated the mother'sparental rights. The mother appeals.
A suspended judgment is a dispositional alternative upon a finding of permanent neglect(see Family Ct Act § 631; Matter of Ernesto Thomas A., 5 AD3d 380, 381 [2004]). It affords"a brief grace period designed to prepare the parent to be reunited with the child" and providesthe parent "a second chance, where the court determines it is in the child's best interests"(Matter of Michael B., 80 NY2d 299, 311 [1992]). "The Family Court may revoke asuspended judgment after a violation hearing if it finds, upon a preponderance of the evidence,that the parent failed to comply with one or more of its conditions" (Matter of Ricky Joseph V., 24 AD3d683, 684 [2005]; see Matter ofJysier E.K.J.L. [Christina D.L.], 88 AD3d 792, 793 [2011]; Matter of Jahquavius W. [QuanteriaH.], 86 AD3d 576, 577 [2011]; Matter of Nicholas S. [Rhonda S.], 78 AD3d 841, 842 [2010]). "'When determining compliance with a suspended judgment, it is the parent's obligation todemonstrate that progress has been made to overcome the specific problems which led to theremoval of the child. Significantly, a parent's attempt to comply with the literal provisions of thesuspended judgment is not enough' " (Matter of Jahquavius W. [Quanteria H.], 86AD3d at 577, quoting Matter of DarrenV., 61 AD3d 986, 987 [2009]).
Here, while the mother made some efforts to comply with the conditions of the suspendedjudgment, the Family Court correctly determined that the mother's failure to attend certainsessions at her drug and alcohol treatment program constituted a violation of the order ofdisposition, which required her to attend 95% of all scheduled sessions at the drug and alcoholtreatment program until successfully discharged. Further, the mother's discharge from the FamilySupport Program for nonattendance and noncompliance constituted a violation of the order ofdisposition, which required the mother to participate in the Family Support Program.Accordingly, the mother failed to demonstrate that progress had been made to overcome one ofthe specific problems which led to the removal of the subject children, that is, her failure to planfor the return of her children by failing to consistently attend substance abuse treatment sessions.The Family Court properly determined, by a preponderance of the evidence, that the motherfailed to comply with certain conditions of the suspended judgment. Thus, the Family Courtproperly revoked the suspended judgment and terminated the mother's parental rights (seeMatter of Jysier E.K.J.L. [Christina D.L.], 88 AD3d at 793; Matter of Jahquavius W.[Quanteria H.], 86 AD3d at 577; Matter of Antoinne T. [April T.], 83 AD3d 721, 722 [2011];Matter of Nicholas S. [Rhonda S.], 78 AD3d at 842).
Contrary to the mother's contention, under the circumstances of this case, the Family Courtprovidently exercised its discretion in determining that a separate dispositional hearing was notrequired before terminating the mother's parental rights. The Family Court may enforce a [*3]suspended judgment without the need for a separate dispositionalhearing, particularly where the court has presided over prior proceedings from which it becameacquainted with the parties, and the record shows that the court was aware of and considered thechildren's best interests (see Matter of Antoinne T. [April T.], 83 AD3d at 722;Matter of Ayame O.-M., 63 AD3d1069, 1071 [2009]; Matter of Darren V., 61 AD3d at 988; Matter of Christyn Ann D., 26 AD3d491, 493 [2006]). Skelos, J.P., Florio, Belen and Sgroi, JJ., concur.